Adjournments: Difference between revisions

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''R v Le (TD)'', [http://canlii.ca/t/frj5d 2011 MBCA 83] (CanLII){{perMBCA|Scott CJ}}{{atL|frj5d|36}}<br>
''R v Le (TD)'', [http://canlii.ca/t/frj5d 2011 MBCA 83] (CanLII){{perMBCA|Scott CJ}}{{atL|frj5d|36}}<br>
''R v White'', [http://canlii.ca/t/287w8 2010 ABCA 66] (CanLII){{TheCourtABCA}}{{atL|287w8|17}}<br>
''R v White'', [http://canlii.ca/t/287w8 2010 ABCA 66] (CanLII){{TheCourtABCA}}{{atL|287w8|17}}<br>
{{supra1|Beals}}
</ref>
</ref>
* the right to counsel is not absolute;<ref>
* the right to counsel is not absolute;<ref>
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* the right of an accused to retain counsel must be exercised honestly and diligently so as not to delay a scheduled trial; and
* the right of an accused to retain counsel must be exercised honestly and diligently so as not to delay a scheduled trial; and
* the scope of review by an appeal court of the exercise of the discretionary power to adjourn a scheduled trial is relatively wide as the consequences of a refusal may be to deprive an accused of his right to be represented by counsel.
* the scope of review by an appeal court of the exercise of the discretionary power to adjourn a scheduled trial is relatively wide as the consequences of a refusal may be to deprive an accused of his right to be represented by counsel.
Consideration should be on whether the accused was deprived of the right to a fair trial, their right to make full answer and defence, or whether there would be a miscarriage of justice.<ref>
{{infra1|Rak}}{{atL|1l76t|7}} (in upholding refusal the SKCA said "We are all of the view the appellants were not deprived of their right to a fair trial or their right to make full answer in defence and there was no miscarriage of justice.")
</ref>
From these principles, the factors courts should consider include the following:<ref>
{{CanLIIR|Hayter|htp2c|2018 SKCA 65 (CanLII)}}{{perSKCA|Caldwell JA}}<br>
{{CanLIIRP|Rak|1l76t|(1999), 1999 CanLII 12229 (SK CA)|, 172 Sask R 301 (CA)}}{{perSKCA|Lane JA}}{{atL|1l76t|7}} ("The appellants had ample opportunity to obtain counsel and their refusal to cooperate with counsel led to a refusal of Legal Aid.  The failure to have counsel did not result in an unfair trial.  Gregory Rak handled the defence rather adroitly on his own and his father’s behalf and was effective in his cross-examination.  He demonstrated a clear ability to understand the documentary evidence.  As well the trial judge was extremely helpful to the appellants throughout the course of the trial.")
</ref>
* whether the accused has failed to exercise the right ot counsel honestly and diligently;
* whether granting an adjournment would inordinately delay the trial;
* whether
* opportunity to obtain with counsel;
* efforts to cooperate with counsel<ref>
{{supra1|Rak}}
</ref>
* the ability of the accused to understand the documentary evidence


; Standard of Review
; Standard of Review
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{{ibid1|Le(TD)}}{{atL|frj5d|37}}<br>
{{ibid1|Le(TD)}}{{atL|frj5d|37}}<br>
{{ibid1|White}}{{atL|287w8|15}}<br>
{{ibid1|White}}{{atL|287w8|15}}<br>
{{supra1|Rak}}{{atL|1l76t|2}} ("The standard of review of the exercise of a trial judge’s discretion in refusing an adjournment may be reviewed by an appellate court “if it is based upon reasons that are not well-founded in law and results in a deprivation of the accused’s right to make full answer in defence” ... the right to make full answer in defence “must be weighed conscientiously and delicately along with the public interest in the orderly administration of justice”.")
</ref>
</ref>


Revision as of 08:12, 23 April 2020

General Principles

An adjournment is re-scheduling of a court proceeding, be it arraignment, plea, trial, sentencing, or otherwise.

The granting of an adjournments is at the discretion of the judge (e.g. see s.571 and 645; 669.1(2)), but in practice is a frequent occurrence.

Powers of Clerk to Adjourn
Adjournment when no jury summoned

474 (1) Where the competent authority has determined that a panel of jurors is not to be summoned for a term or sittings of the court for the trial of criminal cases in any territorial division, the clerk of the court may, on the day of the opening of the term or sittings, if a judge is not present to preside over the court, adjourn the court and the business of the court to a subsequent day.

Adjournment on instructions of judge

(2) A clerk of the court for the trial of criminal cases in any territorial division may, at any time, on the instructions of the presiding judge or another judge of the court, adjourn the court and the business of the court to a subsequent day.
R.S., 1985, c. C-46, s. 474; 1994, c. 44, s. 31.

– CCC

Jurisdiction to Adjourn a Matter

See also: Definition of Judicial Officers and Offices

The statutory authority to adjourn a matter comes from different sections of the Code depending on the level of court and the class of offence charged.

Summary Offence Matters

General adjournments of summary offences is found in Part XX [Pt. XX – Procedure in Jury Trials and General Provisions (ss. 574 to 672)]:

669.1
[omitted (1) [Jurisdiction]]

Adjournment

(2) Any court, judge or provincial court judge having jurisdiction to try an accused or a defendant, or any clerk or other proper officer of the court, or in the case of an offence punishable on summary conviction, any justice, may, at any time before or after the plea of the accused or defendant is taken, adjourn the proceedings.
R.S.C. 1985, c. 27 (1st Supp.), s. 137

– CCC

Provincial Court Judge with Summary Matters

A provincial court judge dealing with a summary matter is governed by s. 803 found in Part XXVII [Pt. XXVII – Summary Convictions (ss. 785 to 840)]:

Adjournment

803. (1) The summary conviction court may, in its discretion, before or during the trial, adjourn the trial to a time and place to be appointed and stated in the presence of the parties or their counsel or agents.

[omitted (2), (3) and (4)]
R.S., 1985, c. C-46, s. 803; 1991, c. 43, s. 9; 1994, c. 44, s. 79; 1997, c. 18, s. 112; 2008, c. 18, s. 45.

– CCC

This section permits the judge to adjourn a matter where the accused fails to appear without issuing a bench warrant.Cite error: Closing </ref> missing for <ref> tag

Superior Court Justices with Indictable Offences Triable by Jury

Adjournments of trials on indictable matters under Part XX [Pt. XX – Procedure in Jury Trials and General Provisions (ss. 574 to 672)]:

606
...

Allowing time

(3) An accused is not entitled as of right to have his trial postponed but the court may, if it considers that the accused should be allowed further time to plead, move to quash or prepare for his defence or for any other reason, adjourn the trial to a later time in the session or sittings of the court, or to the next of any subsequent session or sittings of the court, on such terms as the court considers proper.
...
R.S., 1985, c. C-46, s. 606; R.S., 1985, c. 27 (1st Supp.), s. 125; 2002, c. 13, s. 49; 2015, c. 13, s. 21.

– CCC

Any judge dealing with an indictable matter with a jury:

Trial continuous

645. (1) The trial of an accused shall proceed continuously subject to adjournment by the court.

Adjournment

(2) The judge may adjourn the trial from time to time in the same sittings.

Formal adjournment unnecessary

(3) For the purpose of subsection (2) [authority to adjourn trial], no formal adjournment of trial or entry thereof is required.
...
R.S., 1985, c. C-46, s. 645; R.S., 1985, c. 27 (1st Supp.), s. 133; 1997, c. 18, s. 76; 2001, c. 32, s. 43.
[annotation(s) added]

– CCC

Codified Reasons to Adjourn

Non-Appearance of Prosecutor

Provincial court judge under Part XXII [Pt. XXII – Procuring Attendance (ss. 697 to 715.2)] may adjourn a matter due to non-appearance of the prosecutor:

Non-appearance of prosecutor

799. Where, in proceedings to which this Part [Pt. XXII – Procuring Attendance (ss. 697 to 715.2)] applies, the defendant appears for the trial and the prosecutor, having had due notice, does not appear, the summary conviction court may dismiss the information or may adjourn the trial to some other time on such terms as it considers proper.
R.S., c. C-34, s. 734.
[annotation(s) added]

– CCC

Problems with Charging Document

Where the accused has been misled or prejudiced by any issues found in the indictment or information, the accused may adjourn a matter. (see s. 485, 547, and 601)

Failure to Give Expert Notice

Where a party wishes to call an expert witness and did not give notice, the available remedy is an adjournment under s. 657.3 (5).

Discretion of the Judge

It is a discretionary decision on whether to grant or refuse a request for an adjournment.[1] The discretion should be exercised judicially, giving proper reasons.[2]

Appellate Standard Review

The decision is reviewable on the circumstances of the particular case, including the ability and quality of the accused.[3] The question for the reviewing judge is whether sufficient weight was given to "all relevant considerations".[4]

This exercise of discretion is afforded considerable deference.[5]

The judge does not need to mention every factor considered.[6]

The trial judge is not in error for failure to give full reasons so long as the record shows evidence that permits the necessary inferences to justify the decision.[7]

Where the appeal concerns a refusal to adjourn for the accused to obtain counsel, the appellant must show that the refusal deprived the accused of full answer and defence which resulted in a miscarriage of justice.[8]

Factors to Consider

A judge is typically not inclined to adjourn trial matters. The cost of resources to bring a matter to trial and the desire to bring a matter to a conclusion speaks to the judge's interest in having a matter proceed. This is balanced against the accused's right to a fair trial and right to be tried within a reasonable time.

Where the judge has grounds to believe that the request for an adjournment is a sham, the judge may refuse the adjournment.[9]

The trial judge should consider all circumstances, including:[10]

  • the gravity of the charges
  • the number of previous postponements
  • the consequences to the Crown and accused by a postponement
  • the accused criminal record as a reflection on his experience in the system[11]
  • the public interest in the orderly and expeditious administration of justice[12]
Self-Represented Accused Request to Adjourn to Obtain Counsel

When faced with a request to adjourn to obtain counsel, the trial judge should consider whether a fair trial requires counsel given the seriousness or complexity of the charges.[13]

The judge may also consider the "personality and skills" of the accused.[14]

The right to retain counsel requires that the accused to act honestly and diligently.[15]

Generally, a request should not be refused where the failure to have counsel for trial was not his fault, but rather the fault of defence counsel.[16]

See a review of principles at White, supra, at para 17

  1. ↑ R v White, 2010 ABCA 66 (CanLII), per curiam (3:0) , at para 14
  2. ↑ R v Barrette, 1976 CanLII 180 (SCC), [1977] 2 SCR 121, per Pigeon J (6:3) at 124-125
    R v Anderson, 2013 ABCA 160 (CanLII), per curiam (3:0)
    R v JCG, (2004), 2004 CanLII 66281 (QC CA), 189 CCC (3d) 1 (QCCA), per Dalphond JA, at para 8
  3. ↑ White, supra
  4. ↑ R v Gerlitz, 2014 ABQB 243 (CanLII), per Gates J, at para 21 ("The test for appellate review is whether the trial judge has given sufficient weight to all relevant considerations")
    JCG, supra, at para 9
    White, supra, at para 15
  5. ↑ R v Toor, 2001 ABCA 88 (CanLII), per Paperny JA (alone), at para 15 ("[t]he granting of adjournments and the exercise of judicial discretion are generally afforded a considerable degree of deference, and the law is well established in the area.")
    R v Travis, 2012 ABQB 629 (CanLII), per Yamauchi J, at paras 61 to 63
  6. ↑ R v Beals (1993), 126 NSR (2d) 130(*no CanLII links) , at paras 16 and 29
    R v Tortora, 2010 BCCA 547 (CanLII), 297 BCAC 128, per Bennett JA (3:0), at para 23
  7. ↑ EWB, supra ("On an appeal from a refusal it would appear that a court of appeal will not find the learned trial judge erred notwithstanding his reasons may not be fully articulated if the record discloses evidence from which it can be inferred that the absence of counsel was brought about by the accused for the purpose of delaying the proceedings.")
  8. ↑ Gerlitz, supra, at para 24
  9. ↑ R v Amos, 2012 ONCA 334 (CanLII), per Watt JA (3:0)
  10. ↑ JCG, supra, at paras 12 to 13 ("...“the gravity of the charge, the number of previous postponements and the consequences of a postponement for the Crown and for the accused")
    White, supra, at para 16
    R v MacLean, 2013 ABQB 166 (CanLII), per Ouellette J, at para 14
    R v EWB, 1993 CanLII 5636 (NS CA), per Hallett JA (3:0)
  11. ↑ EWB, ibid.
  12. ↑ EWB, ibid.
  13. ↑ Gerlitz, supra, at para 24
  14. ↑ Gerlitz, supra, at para 24
    White, supra, at para 16
    R v Hodgson, 2004 ABCA 183 (CanLII), per curiam (3:0), at para 4
  15. ↑ Gerlitz, supra, at para 24
    White, supra, at para 17
    R v EWB, 1993 CanLII 5636 (NS CA), per Hallett JA (3:0) ("As a general rule an accused should be refused an adjournment if he has not acted diligently and honestly in attempting to obtain counsel and it can be inferred from the circumstances that he failed to avail himself of the opportunity to do so for the purpose of delaying the proceedings")
  16. ↑ EWB, ibid. ("As a general rule an accused should not be refused an adjournment if the fact that he is without counsel on the scheduled trial dates is not his fault but that of his counsel and he had no complicity in the matter.")

Reasons for Adjournment

Lack of Counsel

The judge has discretion to adjourn a trial on request of the accused for reason that they are not represented by counsel. The judge must consider the accused constitutional right to a fair trial. However, the accused also has the right to represent himself. Further, the right to be represented by counsel must be exercised "diligently and honestly", thus they may be refused if they have not acted honestly and diligently. The accused cannot be refused where the absence of counsel is not their fault.[1]

However, an accused who chooses not to have counsel cannot appeal a conviction on the grounds of not having effective representation.[2]

When considering whether to allow an adjournment by a self-represented accused to seek counsel, the judge should consider principles including:[3]

  • the right to counsel is not absolute;[4]
  • each application for an adjournment must be decided on its own facts;
  • generally, an accused should not be refused an adjournment if the fact that he is without counsel is not his fault, but that of his counsel;
  • the right of an accused to retain counsel must be exercised honestly and diligently so as not to delay a scheduled trial; and
  • the scope of review by an appeal court of the exercise of the discretionary power to adjourn a scheduled trial is relatively wide as the consequences of a refusal may be to deprive an accused of his right to be represented by counsel.

Consideration should be on whether the accused was deprived of the right to a fair trial, their right to make full answer and defence, or whether there would be a miscarriage of justice.[5]

From these principles, the factors courts should consider include the following:[6]

  • whether the accused has failed to exercise the right ot counsel honestly and diligently;
  • whether granting an adjournment would inordinately delay the trial;
  • whether
  • opportunity to obtain with counsel;
  • efforts to cooperate with counsel[7]
  • the ability of the accused to understand the documentary evidence
Standard of Review

The proper standard of review on appeal of this decision is one of whether the discretion was "exercised judicially", which requires asking "whether the trial judge has given sufficient weight to all relevant considerations".[8]

  1. ↑ R v Halnuck, 1996 CanLII 5275 (NS C.A.), per Clarke CJ
    R v Beals, (1993) 126 N.S.R. (2d) 130 (C.A.), 1993 CanLII 5636 (NS CA), per Hallett JA
    R v Marzocchi, 2006 CanLII 13096 (ON C.A.), per curiam
    R v Bitternose, 2009 SKCA 54 (CanLII), per Wilkinson JA
    R v Bissonette 2003 ABCA 93 (CanLII), per Conrad JA
  2. ↑ R v Harris, 2009 SKCA 96 (CanLII), per Richards JA, at para 27
  3. ↑ R v Le (TD), 2011 MBCA 83 (CanLII), per Scott CJ, at para 36
    R v White, 2010 ABCA 66 (CanLII), per curiam, at para 17
    Beals, supra
  4. ↑ see also R v McCallen (1999), 1999 CanLII 3685 (ON CA), 131 CCC (3d) 518 (Ont. C.A.), per O'Connor JA, at para 40
  5. ↑ Rak, infra, at para 7 (in upholding refusal the SKCA said "We are all of the view the appellants were not deprived of their right to a fair trial or their right to make full answer in defence and there was no miscarriage of justice.")
  6. ↑ R v Hayter, 2018 SKCA 65 (CanLII), per Caldwell JA
    R v Rak, (1999), 1999 CanLII 12229 (SK CA), , 172 Sask R 301 (CA), per Lane JA, at para 7 ("The appellants had ample opportunity to obtain counsel and their refusal to cooperate with counsel led to a refusal of Legal Aid. The failure to have counsel did not result in an unfair trial. Gregory Rak handled the defence rather adroitly on his own and his father’s behalf and was effective in his cross-examination. He demonstrated a clear ability to understand the documentary evidence. As well the trial judge was extremely helpful to the appellants throughout the course of the trial.")
  7. ↑ Rak, supra
  8. ↑ Le(TD), ibid., at para 37
    White, ibid., at para 15
    Rak, supra, at para 2 ("The standard of review of the exercise of a trial judge’s discretion in refusing an adjournment may be reviewed by an appellate court “if it is based upon reasons that are not well-founded in law and results in a deprivation of the accused’s right to make full answer in defence” ... the right to make full answer in defence “must be weighed conscientiously and delicately along with the public interest in the orderly administration of justice”.")

Lack of Preparation

It is often expected that an adjournment will be granted where there is late arriving evidence.[1]

Where a lawyer fails to properly prepare, an adjournment is not required as there is a breach of their duty to the court and client.[2]

  1. ↑ R v Johnston, 1991 CanLII 7056 (ON CA), (1991), 47 O.A.C. 66, 5 C.R.(4th) 185, 64 CCC (3d) 233, per Finlayson JA
  2. ↑ R v ERS, 1994 ABCA 176 (CanLII), per curiam

Missing witnesses

In order to adjourn a trial matter on the grounds of missing witnesses, the applicant must establish:[1]

  1. that the absent witnesses are material in the case;
  2. that the party applying has not been guilty of laches or neglect in arranging for the attendance of the witnesses; and
  3. that there is a reasonable expectation that the witnesses will attend court on the date sought by the party applying for the adjournment.

The judge may also consider other relevant circumstances.[2]

  1. ↑ R v LeBlanc 2005 NSCA 37 (CanLII), per MacDonald CJ -- no adjournment for crown in failing to subpoena witnesses
    R v Rose (D.A.) (1995), 140 N.S.R.(2d) 151 (SC) 1995 CanLII 4458, per Glube CJ
    R v AT, 1991 CanLII 6104 (AB Q.B.), per Mcdonald J - factors to consider
    R v Shergill, 2009 BCCA 55 (CanLII), per Hall JA -- judge should have granted the crown adjournment for missing witness
    R v MacDonald, 1998 CanLII 18016 (NL C.A.), per Cameron JA -- short adjournment for crown for missing witness
    Darville v the Queen (1956), 116 CCC 113 (SCC), 1956 CanLII 463 (SCC), per Taschereau J, at paras 13 to 14
  2. ↑ R v Dang, 2005 ABCA 441 (CanLII), per Costigan JA -- consequences of delay by adjournment

Late Disclosure

A failure for the judge to grant a request for adjournment due to late disclosure can amount to an abuse of process requiring a new trial.[1] Before ordering a new trial for refusing to adjourn on account of late disclosure, the court should consider:[2]

  1. the Crown’s assurance that disclosure was complete,
  2. the timing and volume of disclosure,
  3. the seriousness of the charges,
  4. the requirements of a proper review procedure, and
  5. the co-operative approach of defence counsel
  1. ↑ R v Chu, 2016 SKCA 156 (CanLII), per Jackson JA, at para 82
  2. ↑ Chu, ibid., at para 82

Case Digests

See Also

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